UNITED STATES, v. LARRY WHITE (1), MARK ANTHONY FLETCHER III (2), аnd MALIK KEYON BYNUM (3), Defendants.
No. 25-cr-150 (TSC)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
April 27, 2026
Case 1:25-cr-00150-TSC Document 85 Filed 04/27/26 Page 1 of 51
The Government alleges that on July 2, 2021, Defendants Larry White, Mark Fletcher, and Malik Bynum—each armed with a gun—conspired to rob and did rob Rosendo Miller outside a convenience store in the Brentwood neighborhood of Washington, D.C. During the robbery, White allegedly shot Miller several times, killing him. Each Defendant now stands indicted with Conspiracy to Commit Armed Robbery in violation of
With trial set to begin on May 18, 2026, the parties have filed a flurry of motions. This Opinion resolves most of them, with the remainder to be discussed at the Pretrial Conference on April 28.
A. Factual Background
The Government alleges that on July 2, 2021, around 8:36 p.m., Defendants saw Rosendo Miller and his friend enter a convenience store located at 1356 Brentwood Road NE. Upon seeing Miller’s Rolex watch and designer clothing, Defendants ran to a Volkswagen Passat parked nearby and obtained firearms. Each Defendant then pulled ski masks over their heads, returned to the front of the store, and waited for Miller to exit. When he did, Defendants jumped him and tackled him to the ground, and Miller’s friend ran off. Fletcher and White pinned Miller down while Bynum took his Gucci bag. While Defendants were robbing Miller, an unidentified shooter fired a single shot from a nearby intersection. Bynum then ran towards the intersection, firing his gun. Meanwhile, Fletcher and White continued to hold Miller down as White shot Miller several times. Miller died from his gunshot wounds.
On April 17, 2026, the court held a hearing on two pending Motions: (1) Defendants’ Motion to Exclude Opinion Testimony by Lay Witnesses, ECF No. 37; and (2) Defendants’ Motion to Suppress Tangible Evidence and Statements, ECF No. 43. See Min. Entry (Apr. 17, 2026). At the hearing, the Government called two witnesses: Investigator Joshua Anderson and Detective Roberto Amengual. Hr’g Tr. at 8, 94, ECF No. 84.2 Investigator Anderson has been with the Metropolitan Police Department (“MPD”) since 2013. Between 2013 and 2017, he was a patrol officer in Police Service Area 505, which encompasses the 1300 block of Brentwood Road NE. Id. at 33. Starting in 2017 and at the time of the alleged robbery, Anderson was an officer with the Fifth District’s Crime Suppression Team, which likewise covers the Brentwood
Through their work in the Fifth District, both Anderson and Amengual were familiar with Fletcher and Bynum prior to the alleged robbery in 2021. Anderson operated an undercover Instagram account to familiarize himself with individuals in the neighborhood, especially individuals with prior arrests and individuals tagged in group photos with others who were suspected of being involved in criminal activity. Hr’g Tr. at 14–15, 17–18, 83–84. Anderson began following Fletcher on Instagram in 2017 and saw posts of Fletcher posing with firearms. Id. at 17–21. Fletcher’s face is clearly visible in those posts. See id. In late 2017 or early 2018, Anderson initiated a firearms investigation into Fletcher and obtained a warrant for Fletcher’s Instagram data. Id. at 18–19. That investigation ultimately did not result in any arrest or charges. Anderson nevertheless continued to see Fletcher around the neighborhood approximately every other week when Fletcher was not incarcerated and participated in an arrest of Fletcher in 2019. Id. at 23–24. Through Instagram, Anderson also followed and became familiar with Bynum, and it “was not uncommon” for Anderson to see Fletcher and Bynum together. Id. at 29–30. Anderson also periodically saw Bynum in the neighborhood and participated in at least one arrest of Bynum. Id. at 28.
Detective Amengual became familiar with Fletcher in 2018, and with Bynum in 2019. Amengual saw both men while on patrol about once a week, except for periods where Fletcher was incarcerated, and saw them together a handful of times prior to the alleged robbery. Hr’g Tr. at 97–98. In 2019, Amengual participated in one arrest of Fletcher and one arrest of Bynum. Id. at 98. Amengual also participated in a 2021 traffic stop involving Bynum. Id.
At around 8:30 p.m., Anderson went to the Fifth District police station for a meeting. Hr’g Tr. at 35. During the meeting, a live video feed of CCTV footage capturing the 1300 block of Brentwood Road was playing in the background. Id. at 100, 106–07.3 Something on the footage caught Detective Amengual’s attention, and he realized there had been a shooting. Id. at 38–39, 106. He promptly notified the Fifth District over radio. Id. Anderson then responded to the scene to canvas the area. Id. at 39. He later returned to the station, where he reviewed the CCTV footage of the robbery. Id. Anderson and Amengual each recognized Fletcher and Bynum as two of the individuals who allegedly robbed Miller. See id. at 39, 43, 100. Officers also observed two suspects flee in a gray Ford Fusion. Id. at 101.
At some point that night, MPD obtained Fletcher’s GPS data from the Court Supervision and Offender Services Agency, which placed him at a house on the 5000 block of Gay Street NE. Hr’g Tr. at 44, 48. Anderson asked the head of the investigation, Detective Deсker, whether he could go to Gay Street to locate Fletcher. Id. Decker instructed him “to go there and wait until a search warrant could be obtained.” Id. at 48. About two hours after the robbery, at
Body-worn camera footage of the encounter shows that Anderson and Amengual quickly recognized Fletcher and Bynum as occupants of the Fusion. See Gov’t Hr’g Ex. G at 22:53:49–22:55:24. Specifically, as the officers drove past the Fusion, multiple officers can be heard saying, “they’re in the car.” Id. Then, as the officers approached the Fusion with their guns drawn, Anderson shined his flashlight on Fletcher and yelled, “Fletcher, unlock the door;” Amengual told another officer to “get Bynum out, get Bynum out, get Bynum out.” Id. The officers then detained Defendants on Gay Street until they received permission from Detective Decker to arrest them, at which point Defendants were brought to the police station. Id. at 51. The Government asserts, and Defendants do not dispute, that officers subsequently searched the gray Ford Fusion pursuant to a warrant and recovered Miller’s stolen Rolex. See Gov’t Opp’n to Defs.’ Mot. to Suppress at 3, ECF No. 70.
B. Procedural History
The Government initially charged Defendants in D.C. Superior Court on July 3, 2021, and they have been held without bond since that time. See Order Granting Govt’s Mot. to Dismiss Indictment at 1, United States v. Fletcher, 2021 CF1 003714 (D.C. Super. Ct. Aug. 8, 2025) (Ryan, J.) (hereinafter “Dismissal Order”). Defendants were subsequently arraigned in November 2021. Id. There were “initial scheduling delays due in part to the COVID-19 pandemic,” Defs.’ Mot. to Dismiss at 2, ECF No. 36, but in January 2023, a trial date was set for January 27, 2025 in Superior Court. See id. It appears none of the Defendants objected to that initial trial date. See Dismissal Order at 14. The Government represents that this late trial date was “due to the significant baсklog . . . of the Felony 1 calendars in D.C. Superior Court,” and
In June 2024, Bynum moved to continue the January 2025 trial date. His counsel—a lawyer with the Public Defender Service (“PDS”)—explained that she was assigned the case when Bynum’s previous public defender left PDS, that she had another trial scheduled for the same time in a different case that was older than Bynum’s, that her “client in that matter would be prejudiced by any additional continuances,” and that no other PDS attorney was available for trial in January 2025. See Bynum’s Mot. to Continue Trial at 1–2, United States v. Bynum, 2021 CF1 003715 (D.C. Super. Ct. June 15, 2024). White and Fletcher stated in writing “that they did not object to the continuance.” Dismissal Order at 2.
The Government, however, “vehemently” opposed. Gov’t Opp’n to Bynum’s Mot. to Continue at 3, United States v. Bynum, 2021 CF1 003715 (D.C. Super. Ct. June 27, 2024). It asserted that it was “prepared to go forward as scheduled” and that a continuance would “severely prejudice the government, the witnesses, and the decedent’s family.” Id. The Government requested that the Court transfer Bynum’s case to a CJA attorney if no PDS attorney was available. See id. Judge Raffinan rejected the Government’s request, granted Bynum’s motion, and rescheduled the trial for December 1, 2025. See Dismissal Order at 2.
White’s counsel subsequently informed the Government that White would seek a continuance of the December 2025 trial date. See Dismissal Order at 12 (“[C]ounsel for Mr. White confirmed at the June 26, 2025 Status Hearing that Mr. White would seek a continuance of the December 1, 2025 trial date.”). The Government then sought to move the case to federal
Judge Ryan granted the Government’s motion to dismiss without prejudice and denied Fletcher’s motion to sever as moot. See Dismissal Order at 1. He found no evidence “to suggest an improper government motive in seeking to dismiss the indictment.” Id. at 10. Judge Ryan took “seriously” the Government’s representation “that trial in federal court would occur more
Judge Ryan further rejected Fletcher’s argument that moving the case to federal court would violate his speedy trial right or impair his defense. See Dismissal Order at 12–18. Judge Ryan found that the length of time the case had been pending, although significant, was “not principally of the government’s making.” Id. at 13. Rather, he noted, “a significant portion of the delay is attributable to the defendants.” Id. Judge Ryan also emphasized that the record did not “reflect prior assertions” by Fletcher “of his right” to a speedy trial. Id. To the contrary, Fletcher did not object to the initial trial date set three-and-a-half years from the date of his arrest, and he did not object to Bynum’s request for a continuance. Id. Judge Ryan concluded that “too much time has passed between [] Fletcher’s arrest and his assertion” of his speedy trial right in his opposition to the Government’s Motion to Dismiss “to credit his assertion significantly.” Id. at 14. He concluded that Fletcher’s “bald assertion” that his defense was impaired could not be credited “without further detail.” Id. at 17.
After the case was indicted in this court, it was first assigned to Judge McFadden, who set a trial for May 18, 2026, and made clear that trial would begin on that date. See Min. Order (Nov. 24, 2025); see also Min. Order (Mar. 9, 2026). Due to his trial calendar and to ensure trial begins on time, Judge McFadden reassigned this case to the undersigned. See Min. Order (Mar. 18, 2026).
Defendants first move to dismiss the entire case. See Defs.’ Mot. to Dismiss Case, ECF No. 36.6 They repeat Fletcher’s argument in Superior Court—already rejected by Judge Ryan—that the Government’s decision to move this case to federal court violates their Sixth Amendment right to a speedy trial. See id. at 5–8. Alternatively, they urge this court to use its supervisory powers to dismiss the case for “unnecessary delay” in “bringing [] defendant[s] to trial” under
a. Sixth Amendment Right
Although the Sixth Amendment guarantees “the accused . . . the right to a speedy . . . trial,”
i. Length of delay
The first factor—length of the delay—“is actually a double enquiry.” Doggett v. United States, 505 U.S. 647, 651 (1992). “Simply to trigger a speedy trial analysis,” a defendant must
The Sixth Amendment speedy trial clock started to run when the Government charged Defendants in Superior Court. See United States v. Mills, 925 F.2d 455, 464–65 (D.C. Cir. 1991) (The “Sixth Amendment analysis would comprehend the entire time span from the appellees’ indictment in Superior Court to the dismissal of the federal charges against them, given that the same federal prosecutors controlled both prosecutions.”), vacated on other grounds, 964 F.2d 1186 (D.C. Cir. 1992). Thus, for purposes of the Sixth Amendment, Defendants have experienced a nearly five-year delay in getting their case to trial.
That delay is plainly sufficient to trigger the speedy trial analysis. See Doggett, 505 U.S. at 652 n.1 (“[T]he lower courts have generally found postaccusation delay ‘presumptively prejudicial’ at least as it approaches one year.”). But it by no means compels the conclusion that Defendants’ speedy trial right has been violated. “The length of delay . . . is necessarily dependent upon the peculiar circumstances of the case.” Barker, 407 U.S. at 530–31 (cleaned up). This case involves complex charges of the most serious nature—felony murder, conspiracy, armed robbery, and various firearms offenses—as well as numerous motions and multiple defendants. And “the delay that can be tolerated for . . . a serious, complex conspiracy charge” is “considerably” more than for “an ordinary street crime.” Id. at 531; see also United States v. Gaffney, 812 F. Supp. 3d 49, 75–76 (D.D.C. 2025) (“[A] proceeding involving a single defendant should proceed more quickly than one with multiple defendants.”).
With respect to the second factor, the Supreme Court “instructs that ‘different weights should be assigned to different reasons.’” Brillon, 556 U.S. at 90 (quoting Barker, 407 U.S. at 531). “Deliberate delay ‘to hamper the defense’ weighs heavily against the” Government. Id. (quoting Barker, 407 U.S. at 531). “More neutral reasons such as negligence or overcrowded courts weigh less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government[.]” Id. (cleaned up). “In contrast, delay caused by the defense weighs against the defendant” because delay “attributable to the defendant” is essentially a waiver of the speedy trial right. Id. (cleaned up). Notably, “delay caused by the defendant’s counsel is also charged against the defendant,” even if the lawyer is a public defender, because “once a lawyer has undertaken” a defendant’s case, “the duties and obligations are the same.” Id. at 91 (cleaned up).7
This court agrees with Judge Ryan that the delay in this case is “not principally of the government’s making,” but rather, “a significant portion of the delay is attributable to the defendants.” Dismissal Order at 13. To start, there is no indication that the Government deliberately stalled the case to gain any sort of tactical advantage; to the contrary, the Government “vehemently” opposed Bynum’s request for a continuance because the Government wanted to try the case more quickly. See Gov’t Opp’n to Bynum’s Mot. to Continue at 3, United States v. Bynum, 2021 CF1 003715 (D.C. Super. Ct. June 27, 2024). Judge Ryan properly credited the Government’s explanation that it was moving the case to federal court to get to trial
Moreover, the initial delays due to the COVID-19 pandemic and the effect it had on the Superior Court’s backlog “does not weigh heavily against the government” because the effects of the pandemic were largely beyond the Government’s control. United States v. Vargas, 97 F.4th 1277, 1292 (11th Cir. 2024). Further, the initial trial date was due at least in part to the need to accommodate defense counsel availability. And the nearly year-long delay due to Bynum’s request for a continuance clearly cannot be blamed on the Government, particularly because both Fletcher and White acquiesced to that continuance.
Defendants respond that “because the government chose to try all three co-defendants jointly,” it “bears responsibility for delays caused by thе need to coordinate” schedules. Defs.’ Mot. to Dismiss Case at 6. To start, this argument appears inconsistent with the D.C. Circuit’s instruction in Rice that delays caused by a codefendant “cannot be blamed on . . . the government.” 746 F.3d at 1082. In any event, Bynum and White never sought to sever their case while in Superior Court, and Fletcher only sought to sever his case after nearly four years and in response to the Government obtaining an indictment in federal court. If Defendants
Furthermore, there is a “strong” preference for the joint trial of codefendants who are charged with “participating in the same illegal acts” when those charges involve “much the same evidence” and “testimony of the same witnesses.” United States v. Wilson, 605 F.3d 985, 1016 (D.C. Cir. 2010) (quoting United States v. Ford, 870 F.2d 729, 731 (D.C. Cir. 1989)). Indeed, the preference for joint trials “applies with particular force in conspiracy cases.” United States v. Davenport, 935 F.2d 1223, 1240 (11th Cir. 1991). Therefore, to the extent the delays caused by the need to coordinate schedules are attributable to the Government, that “must be balanced against the importance of conducting joint trials in conspiracy cases, which offsets to some extent the government’s level of culpability.” Id.; cf. Barker, 407 U.S. at 531 (“[A] valid reason . . . should serve to justify appropriate delay.”). In sum, although the Government bears responsibility for delay attributable to the Superior Court’s backlog and perhaps some responsibility for delay attributable to its decision to try the case jointly, this factor does not weigh strongly against the Government.
iii. Defendants’ assertion of their rights
“The third factor”—Defendants’ assertion of their rights—“cuts decidedly against [Defendants] because [they] did not raise any” speedy trial challenge—constitutional or otherwise—until after nearly four years and only when the Government indicted their case in federal court. Rice, 746 F.3d at 1082. Although Defendants invoked their right to a speedy trial at their presentment in Superior Court in July 2021, their subsequent requests for or acquiescence
iv. Prejudice to Defendants
Finally, the Sixth Amendment seeks to “limit the possibility that the defense will be impaired,” “minimize anxiety and concern of the accused,” and “prevent oppressive pretrial incarceration.” Barker, 407 U.S. at 532. The court acknowledges the detrimental impacts of pretrial incarceration and the stress of waiting for a trial, neither of which is lightly dismissed. The pretrial incarceration in this case, however, is amply justified by the nature of the crimes charged, the weight of the evidence against Defendants, Defendants’ criminal history, and the danger they pose to the community. Moreover, as noted above, the length of both the detention and delay is “not principally of the government’s making,” but rather significantly “attributable to the defendants.” Dismissal Order at 13.
As to Defendants’ claim that the decision to move the case to federal court unduly interfered with their Sixth Amendment right to counsel and otherwise impaired their defense preparations, the court is not persuaded. As a threshold matter, this alleged prejudice sits uneasily within the speedy trial framework, which analyzes whether delay has impaired the defense. Here, however, the change in counsel was a consequence of the Government’s decision to bring the case in federal court—a decision made to avoid further delay in Superior Court. Defendаnts thus seek to charge the Government with prejudice flowing not from delay, but from the Government’s efforts to reduce it.
In any event, Defendants’ assertion that their right to counsel has been impaired is hard to credit because they are represented by experienced federal practitioners, each of whom has repeatedly represented to the court that they are ready for trial on May 18. The quantity and
Finally, Defendants argue in a footnote that the Government’s “delay has also hampered recently appointed defense counsels’ ability to investigate this case fully” because “[w]itnesses have long scattered and video from the scene likely no longer exists.” Defs.’ Mot. to Dismiss Case at 10 (emphasis added). But Defendants were charged the day after the robbery and have been continuously represented by counsel since. To the extent certain investigative steps were not taken by prior counsel, thаt is attributable to prior defense counsel, not to any delay by the Government. Cf. Brillon, 556 U.S. at 90–91 (choices made by defense counsel are charged to the defendant). More fundamentally, it is inconsistent for Defendants to simultaneously claim harm from the loss of prior counsel while complaining, in effect, that prior counsel failed to take investigative steps that may have been useful. In sum, although pretrial detention and the stress of awaiting trial are real burdens, the prejudice factor does not meaningfully weigh in Defendants’ favor. On balance, then, the Barker factors do not establish any violation of Defendants’ Sixth Amendment right to a speedy trial.
Defendants argue that the Government’s decision to move the case to federal court caused unnecessary delay and thеrefore warrants dismissal under Rule 48(b)(3). See Defs.’ Mot. to Dismiss Case at 8. That argument fails because there is no evidence that the Government’s
C. Vindictive Prosecution
Finally, Defendants contend that the Government engaged in vindictive prosecution by threatening to seek a superseding indictment if Fletcher’s counsel sought to continue the May 18, 2026 trial date. See Defs.’ Mot. to Dismiss Case at 10. Specifically, after this case was indicted in federal court, Assistant Federal Public Defender Alexis Gardner was assigned to represent Fletcher. In November 2025, Judge McFadden set the May trial date. See Min. Order (Nov. 24, 2025). Two months later, in January 2026, Gardner left the Federal Public Defender’s Office, and Eugene Ohm was assigned to replace her even though he was not available for the May trial. See Defs.’ Mot. to Dismiss Case at 4. At some point in January or February 2026, Ohm informed the Government that he intended to seek a continuance and suggested a trial in June or September 2026. The Government responded that it might seek a superseding indictment charging Defendants with Hobbs Act robbery and/or Use of a Firearm During a Crime of Violence Resulting in Death under
“The Due Process Clause prohibits prosecutors from . . . retaliat[ing] against a defendant for exercising a legal right.” United States v. Slatten, 865 F.3d 767, 798–99 (D.C. Cir. 2017); see also United States v. Safavian, 649 F.3d 688, 692 (D.C. Cir. 2011) (“The doctrine of prosecutorial vindictiveness . . . precludes action by a prosecutor that is designed to penalize a defendant for invoking any legally protected right[.]” (cleaned up)). “At the same time, however, prosecutors have broad discretion to enforce the law, and their decisions are presumed to be proper absent clear evidence to the contrary.” Slatten, 865 F.3d at 799 (citing United States v. Armstrong, 517 U.S. 456, 464 (1996)). “Thus, to succeed on a claim of vindictive prosecution, a defendant must establish that the increased charge was ‘brought solely to penalize him and could not be justified as a proper exercise of prosecutorial discretion.’” Id. (quoting United States v. Goodwin, 457 U.S. 368, 380 n.12 (1982)) (emphasis in original) (cleaned up).
Notably, “the Supreme Court has distinguished between pre-trial and post-trial settings.” Slatten, 865 F.3d at 799. “In a pre-trial setting, ‘the prosecutor’s assessment of the proper extent of prosecution may not have crystallized,’ so an increase in charges may be the result of additional information or further consideration of known information, rather than a vindictive
Because the alleged retaliation occurred before trial, Defendants are not entitled to a presumption of vindictiveness. And on this record, they have failed to furnish facts sufficient to show a realistic likelihood that the Government’s warning that it might seek a superseding indictment if the May trial date was continued was meant “solely to penalize” Defendants in the event Fletcher sought a continuance. Slatten, 865 F.3d at 799 (quoting Goodwin, 457 U.S. at 380 n.12) (emphasis in original). To the contrary, the Government informed defense counsel as early as June 2025—at least seven months before Ohm indicated his plans to seek a continuance—that it was “considering a potential Superseding Indictment which would replace all the D.C. Code offenses with their Federal counterpart. For example, the D.C. Code Robbery While Armed charge would be replaced by Hobbs Act Robbery [], and the D.C. Code [Possession of a Firearm
Finally, Defendants emphasize that the Government’s warning forced the Federal Public Defender to substitute counsel, and that replacement counsel have had to scramble to prepare. The court does not minimize that consequence. But under Goodwin, the pre-trial vindictiveness inquiry focuses on whether the prosecutor’s sole motive was retaliatory, not the downstream effect that prosecutorial charging decisions might have on defense strategy and preparation. 457 U.S. at 381. Because the record shows that the Government began contemplating a superseding indictment long before the dispute over a continuance request arose, there are not “facts sufficient to . . . ‘support a realistic likelihood of vindictiveness.’” Slatten, 865 F.3d at 799
III. MOTION TO DISMISS COUNT SEVEN
Defendants next move to dismiss the felony murder charge on the ground that it violates the Due Process Clause of the Fifth Amendment. See Defs.’ Mot. to Dismiss Count Seven at 1, ECF No. 35.10 Because this argument has little to no legal support, Defendants’ motion will be DENIED.
Under D.C.’s felony murder law, a person is guilty of murder in the first degree if, “being of sound memory and discretion,” he “without purpose to do so kills another in perpetrating or in attempting to perpetrate” certain enumerated felonies, including “robbery.”
Similarly, under the common law approach to felony murder that Congress codified into the D.C. Code in 1901, a person “who neither killed nor had any intent to kill, but only took part knowingly in the commission of a felony” was liable for first-degree murder. Heinlein, 490 F.2d at 736. Thus, D.C. law provides that “in a felony murder case, [] an accomplice does not escape liability for a foreseeable death merely bеcause he or she neither intended to kill nor pulled the trigger.” Wilson-Bey v. United States, 903 A.2d 818, 835 (D.C. 2006). Rather, an “accomplice who aids and abets the commission of a felony is legally responsible as a principal for all acts which are in furtherance of the common design or are the natural and probable consequences of acts done in the perpetration of the felony.” Id. (quoting Heinlein, 490 F.2d at 735) (cleaned up). “To hold otherwise would be to reject the underlying purpose of the felony murder doctrine, which is designed to deter the commission of certain especially dangerous felonies because these particular crimes create an unacceptably high risk of death[.]” Id.
Defendants’ due process challenge to D.C.’s felony murder statute “must surmount a high bar.” Kahler v. Kansas, 589 U.S. 271, 279 (2020)Id. (quoting Leland v. Oregon, 343 U.S. 790, 798 (1952)); see also City of Grants Pass v. Johnson, 603 U.S. 520, 541 (2024) (noting that this standard applies to the due process analysis under both the Fifth and Fourteenth Amendments); Kincaid v. District of Columbia, 854 F.3d 721, 726 (D.C. Cir. 2017) (clarifying that the District of Columbia is subject to the Due Process Clause of the Fifth Amendment, not the Fourteenth, but the same due process analysis applies). The “primary guide
D.C.’s felony murder law is too deeply rooted in the common law to violate due process. See McMillan v. Gomez, 19 F.3d 465, 470 (9th Cir. 1994) (“The felony murder rule is too deeply rooted in Anglo-American jurisprudence to be questioned now.”). Indeed, D.C.’s rule stretches back to the common law that D.C. courts have applied since 1801. Heinlein, 490 F.2d at 736. And the doctrinal underpinnings of that rule “can be traced back” even further to the eminent common law authority “Lord Coke.” State v. Clark, 652 S.W.3d 123, 125 (Mo. 1983). Contrary to Defendants’ contention, the felony murder rule does not impermissibly circumvent the requirement of mens rеa. “The defendant’s intent, which the prosecution must still prove, relates to the other felony rather than the murder.” McMillan, 19 F.3d at 470. And from the intent to commit that other especially dangerous felony, the law sensibly infers the malice necessary to be guilty of murder, see Towles, 521 A.2d at 657, that is, “a wanton disregard for human life.” Logan v. United States, 483 A.2d 664, 671 (D.C. 1984); see also State v. Burkhart, 103 P.3d 1037, 1046 (Mont. 2004) (“[T]he intent to commit the felony supplies the intent for all the consequences, including homicide, arising therefrom.”). Unsurprisingly, then, the Supreme Court has long said that the power “to enact felony-murder statutes is beyond constitutional challenge,” as is the power “to make aiders and abettors equally responsible as a matter of law.” Lockett v. Ohio, 438 U.S. 586, 602 (1978).
Fletcher and Bynum’s reliance on Rosemond v. United States, 572 U.S. 65 (2014), is misplaced. That case interpreted the federal aiding and abetting statute as applied to
IV. MOTION TO SUPPRESS ANKLE MONITOR EVIDENCE
Fletcher moves to suppress all evidence obtained from the GPS monitor placed on his ankle in May 2021 by his Community Supervision Officer (“CSO”) as a sanction for his noncompliance with his conditions of supervised release. See Fletcher’s Mot. to Suppress, ECF No. 34. He points to the D.C. Court of Appeals’ decision in Davis v. United States, 306 A.3d 89 (2023), in which a two-judge majority held that CSOSA lacked statutory authority to issue a regulation allowing CSOs to temporarily place electronic monitors on noncompliant supervisees, and therefore that regulation was not a reasonable one on which a Fourth Amendment special needs search could be based. Davis, 306 A.3d at 92. But Davis did not consider whether CSOSA’s electronic monitoring regulation was based on “a reasonable mistake of law” under
A. CSOSA’s Authority to Place Ankle Monitors on Noncompliant Supervisees
In 1997, Congress made all D.C. offenders on supervised release “subject to the authority of the United States Parole Commission.” National Capital Revitalization and Self-Government Act of 1997,
Yet Congress also empowered CSOSA to “develop and operate intermediate sanctions programs for sentenced offenders.”
CSOSA, in turn, issued an interim rule in 2001 establishing an administrative sanctions schedule that included “electronic monitoring for a specified period of time.”
During this more than two-decade period, CSOSA repeatedly informed Congress that it placed non-compliant supervisees on GPS monitoring at its own discretion. See Davis, 306 A.3d at 114–15 (Thompson, J., dissenting) (collecting examples). Yet Congress never suggested that CSOSA was acting in excess of its statutory power. To the contrary, when Congress re-enacted CSOSA’s authority to develop and operate a program of intermediate sanctions in 2016, the Senate Committee on Homeland Security and Governmental Affairs expressed its understanding that CSOSA “has specific statutory authority to punish sentenced offenders” who violate their release conditions. See S. Rep. No. 114-110, at 2 (2015).
Moreover, before Davis, the D.C. Court of Appeals had repeatedly suggested in dicta that CSOSA could impose intermediate sanctions like temporary electronic monitoring. For example, in Hunt v. United States, a unanimous panel distinguished conditions of release, which CSOSA could not impose, from “intermediate sanctions,” including “electronic monitoring for a specified period,” which the court indicated CSOSA could impose. 109 A.3d 620, 621–22 (D.C. 2014). The Hunt court further quotеd with approval CSOSA’s regulation that “[s]anctions ‘can be applied short of court or [Parole Commission] approval’” and that sanctions “enable CSOSA to ‘provide swift, certain, and consistent responses to noncompliant behavior.’” Id. at 622 (quoting
The divided decision in Davis thus significantly altered the status quo that had existed unchallenged for over two decades. A two-judge majority held that CSOSA’s regulation allowing Community Supervision Officers to impose temporary GPS monitoring as an intermediate sanction “exceeds its statutory authority.” Davis, 306 A.3d at 99. The majority concluded that “the Parole Commission has the sole authority to impose or modify conditions of supervised release.” Id. at 101. Although the majority assumed that CSOSA held “some authority . . . to administratively sanction” supervisees,12 it rejected the argument that temporary GPS monitoring was an intermediate sanction short of a condition of release. Id. at 104–08. The majority reasoned in part that treating temporary GPS monitoring as an intermediate sanction would unduly encroach on the Parole Commission’s power over conditions of release, id. at 104, even though all CSOSA sanctions “remain[ed] subject to the Commission’s override or modification.” Id. at 107. The majority went on to conclude that because CSOSA lacked statutory authority to promulgate the regulation, the regulation could not “substitute for the
In a persuasive dissent, Judge Thompson strongly disagreed. She noted that the statutory provision giving CSOSA “‘the same powers and authority as are granted by law to United States Probation and Pretrial Officers’” did not say CSOSA “shall have only ‘the same powers and authority as are granted by law to’” Probation and Pretrial Officers. See Davis, 306 A.3d at 120 (Thompson, J., dissenting) (emphasis in original) (quoting
This court defers to the Davis majority’s conclusion that CSOSA lacked statutory authority for its electronic monitoring regulation because that conclusion is rooted in the interpretation of the D.C. Code. See Williams v. Johnson, 776 F.3d 865, 869 (D.C. Cir. 2015) (“We defer to the District of Columbia Court of Appeals’ interpretation of the D.C. Code.”). The question remains, however, whether CSOSA’s regulation was nevertheless reasonable because it was based on a reasonable mistake of law and could therefore still support a special needs search. See Heien, 574 U.S. at 61 (reasonable mistake of law does not render search or seizure unlawful); see also Jackson, 214 A.3d at 480–81 (search conducted pursuant to a reasonable regulation of probation supervisees is a reasonable search under the special needs doctrine). The D.C. Court of Appeals has never decided that question. See United States v. Wells, 341 A.3d 1096, 1112 n.6 (D.C. 2025). And even if it had, this court is not bound by the D.C. Court of Appeals on questions of federal constitutional law. See United States v. Castle, 825 F.3d 625, 634 (D.C. Cir. 2016).
B. Reasonable Mistake of Law
As the Supreme Court has repeatedly made clear, “‘the ultimate touchstone of the Fourth Amendment is reasonableness.’” Riley v. California, 573 U.S. 373, 381 (2014) (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)). “To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them ‘fair leeway for enforcing the law in the community’s protection.’” Heien, 574 U.S. at 60–61 (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)). Where law enforcement bases a searсh or seizure on a mistake of fact or law, that mistake does not invalidate a resulting search
Here, the search of Fletcher’s person effected by his ankle monitor was based on CSOSA’s longstanding regulation which was, in turn, based on a reasonable mistake of law. CSOSA reasonably believed—as did the Parole Commission and two judges of the D.C. Court of Appeals—that it had statutory authority to impose intermediate sanctions, including temporary electronic monitoring, on noncompliant supervisees. See Davis, 306 A.3d at 112 (Thompson, J., dissenting) (“[T]he plain language of CSOSA’s authorizing statute, its legislative history, and CSOSA’s interpretation of its statutory mandate as made known to Congress all confirm CSOSA’s statutory authority to operate its sanctions program.”); Wells, 341 A.3d at 1116 (McLeese, J., dissenting) (“Davis was incorrectly decided for reasons well stated by the dissenting opinion in that case.”);
Fletcher responds that “[e]rrors of law concerning the scope of the Fourth Amendment . . . can never support a search or seizure.” Fletcher’s Reply at 7–8, ECF No. 77. True enough.
In sum, CSOSA’s reasonable mistake of law did not render its regulation unreasonable, and the search on Fletcher conducted pursuant to that regulation was therefore permissible under the Fourth Amendment’s special needs doctrine. See Jackson, 214 A.3d at 480–81. But even if the ankle monitor violated the Fourth Amendment, it does not automatically follow that the evidence resulting from the monitor must be suppressed. The question would still remain whether the exclusionary rule—which often requires the suppression of evidence obtained in violation of the Fourth Amendment—applies in this case.
C. The Exclusionary Rule
The Fourth Amendment protects the “right of the people to be secure in their persons . . . against unreasonable searches and seizures.”
The social costs of suppressing evidence are indeed substantial. The exclusionary rule “almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence.” Davis, 564 U.S. at 237. “And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment.” Id. “[L]etting guilty and possibly dangerous defendants go free” is “something that ‘offends basic concepts of the criminal justice system.” Herring, 555 U.S. at 141 (cleaned up). Thus, the “rule’s costly toll upon truth-seeking and law enforcement objectives presents a high obstacle for those urging its application.” Hudson, 547 U.S. at 591. Although “society must swallow this bitter pill when necessary” to deter future Fourth Amendment violations, it must do so “only as a ‘last resort.’” Davis, 564 U.S. at 237 (quoting Hudson, 547 U.S. at 591).
To that end, the Supreme Court has, in recent decades, required “a more rigorous weighing of [the exclusionary rule’s] costs and deterrence benefits”—one that “focus[es] . . . on the ‘flagrancy of the police misconduct.’” Davis, 564 U.S. at 237 (quoting United States v. Leon, 468 U.S. 897, 909 (1984)). “When the police exhibit ‘deliberate,’ ‘reckless,’ or ‘grossly negligent disregard for Fourth Amendment rights, the deterrent value of exclusion is strong.” Id.
Fletcher does not dispute that his CSO acted in objectively reasonable, good faith reliance on CSOSA’s electronic monitoring regulation. See Fletcher’s Reply at 2–3. Fletcher argues only that the court should apply “the exclusionary rule to CSOSA’s decision, as an agency, to promulgate” an unlawful regulation in order to “disincentivize the agency from implementing future policies that authorize unconstitutional searches.” Id. at 3 (cleaned up). He further urges this court to follow the divided decision of the D.C. Court of Appeals in United States v. Wells, 341 A.3d 1096 (D.C. 2025), where, over the dissent of Judge McLeese, the same two judges who comprised the Davis majority applied the exclusionary rule to evidence obtained from a CSOSA-imposed GPS monitor. But as another court in this District has explained, the Wells majority is neither binding nor persuasive. See Hr’g Tr. at 7 (Feb. 9, 2026), United States v. Jones, No. 24-cr-35 (hereinafter “Jones Tr.”) (citing Castle, 825 F.3d at 634 (noting that decisions of the D.C. Court of Appeals are “not binding” on Fourth Amendment questions)). For the following reasons, this court is more persuaded by the reasoning of Judge McLeese’s dissent and the court in Jones. It was reasonable for the CSO to rely on CSOSA’s objectively reasonable, good-faith
The court acknowledges, however, the legitimate concern raised by Fletcher and the Wells majority that it would be problematic to apply the good-faith exception to law enforcement agencies who enact regulations аuthorizing “constitutionally questionable searches” because “that would only incentivize law enforcement to push the Fourth Amendment envelope in systemic ways.” Wells, 341 A.3d at 1108. Strategic, systemic envelope pushing would indeed be precisely the sort of “sufficiently deliberate” and “sufficiently culpable” bad faith conduct that would warrant deterrence. Herring, 555 U.S. at 144. But that is not the conduct at issue here, and the court need not decide whether the good-faith exception would extend to a typical law enforcement agency’s reliance on its own regulations. CSOSA’s regulation presents a distinctive case for at least three reasons which, taken together, avoid the parade of horribles that Fletcher and the Wells majority fear.
First, CSOSA did not aggressively overread its authority; its interpretation was “entirely reasonable.” Wells, 341 A.3d at 1127 (McLeese, J., dissenting). Indeed, at least two judges of the D.C. Court of Appeals thought CSOSA’s interpretation was not only reasonable but correct. See Davis, 306 A.3d at 112 (Thompson, J., dissenting); see also Wells, 341 A.3d at 1116 (McLeese, J., dissenting); cf. Person, 754 F. Supp. 3d at 249 (“[T]he test for a reasonable mistake of law is satisfied ‘when the law at issue is so doubtful in construction that a reasonable judge could agree with the officer’s view.’” (quoting Heien, 574 U.S. at 70 (Kagan, J., concurring))). CSOSA’s interpretation emerged only after the Parole Commission first enacted a regulation interpreting the D.C. Code to give CSOSA authority to impose intermediate sanctions on noncompliant offenders, including electronic monitoring with a curfew. See
Second, although CSOSA has law enforcement attributes and shares its GPS data with the Metropolitan Police Department, CSOSA is by no means a typical, zealous law enforcement agency. As the Supreme Court has recognized, “[p]arole agents, in contrast to police officers, are not ‘engaged in the often competitive enterprise of ferreting out crime.’” Scott, 524 U.S. at 368 (quoting Leon, 468 U.S. at 914). Unlike normal law enforcement agencies, CSOSA is concerned with “the distinctive probation mission” of rehabilitating offenders and encouraging them to comply with the conditions of release. United States v. Jackson, 214 A.3d 464, 475 (D.C. 2019). Given this primary mission of offender rehabilitation, it is “unfair to assume that the parole officer bears hostility against the parolee that destroys his neutrality.” Scott, 524 U.S. at 368 (cleaned up). CSOSA’s relationship with offenders is intended to be supervisory rather than adversarial. See id.
In these significant respects, CSOSA is much closer to the legislature in Krull than it is to the typical law enforcement agency that Fletcher and the Wells majority worry about. CSOSA did not promulgate its intermediate sanctions regulation “for the purpose of procuring evidence in particular criminal investigations.” Krull, 480 U.S. at 352. Instead, it was enacting a broad program to “directly serve the primary purposes of probation supervision” as distinct from the “normal need for law enforcement.” Jackson, 214 A.3d at 476. Moreover, the regulation promulgated by CSOSA was not the product of “hurried judgment.” Id. at 351. Rather, it went
Finally, even if the court were to credit Fletcher’s concerns regarding CSOSA’s lаw enforcement attributes, CSOSA reasonably relied on the judgment of the Parole Commission, which interpreted the D.C. Code to give CSOSA the authority to impose intermediate sanctions on noncompliant supervisees, including curfew with electronic monitoring, before CSOSA reached that same conclusion, see
Taken together, these distinctive features of CSOSA’s objectively reasonable regulation, and the absence of any deliberate, reckless, grossly negligent, or even negligent behavior show that the deterrence value of suppression would be slight and “exclusion cannot pay its way.” Davis, 564 U.S. at 238 (cleaned up). Accordingly, Fletcher’s Motion to Suppress the Ankle Monitor Evidence, ECF No. 34, will be DENIED.
Defendants next move to suppress the tangible evidence recovered after police located the gray Ford Fusion and detained Defendants. See Defs.’ Mot. to Dismiss Tangible Evidence, ECF No. 43.13 Defendants contend that police lacked reasonable suspicion to stop them, and that their subsequent warrantless arrests were not supported by probable cause. See id. at 2. Because officers plainly had reasоnable suspicion to stop Defendants and probable cause to arrest them, Defendants’ motion will be DENIED.14
“The Fourth Amendment protects against unreasonable seizures of the person.” United States v. Abdus-Price, 518 F.3d 926, 930 (D.C. Cir. 2008). Consistent with the Fourth Amendment, “a police officer may effect a brief seizure for investigative purposes . . . if he has ‘a reasonable suspicion, grounded in specific and articulable facts, that a person was involved in or is wanted in connection with a completed felony.’” Id. (quoting United States v. Hensley, 469 U.S. 221, 229 (1985)). Reasonable suspicion “is not a particularly high bar: ‘a Terry stop requires only a minimal level of objective justification.’” Id. (quoting United States v. Edmonds, 240 F.3d 55, 59 (D.C. Cir. 2001)).
“The point at which an investigative stop becomes an arrest is not marked with a bright line.” Hall v. District of Columbia, 867 F.3d 138, 153 (D.C. Cir. 2017). It depends on the length
The court need not analyze when the investigative detention of Defendants ripened into an arrest. Officers plainly had probable cause to arrest Defendants as soon as they saw them in the gray Ford Fusion. Specifically, upon reviewing CCTV footage of the alleged robbery, Investigator Anderson and Detective Amengual both recognized Fletcher and Bynum as two of the men who robbed Miller. They also observed two of the suspects flee the scene in a gray Ford Fusion. They then tracked Fletcher to the 5000 block of Gay Street NE using his GPS ankle
VI. MOTION TO INTRODUCE ANKLE MONITOR EVIDENCE
Next, the Government seeks to introduce evidence that Fletcher was wearing an ankle monitor, as well as the underlying GPS data, to (1) place Fletcher at the scene of the crime, (2) identify Fletcher as the robber in the CCTV footage who is wearing such a device, and (3) explain how police located Fletcher and his codefendants in the Ford Fusion mere hours after the crime occurred. See Gov’t Mot. to Introduce Fletcher’s Ankle Monitor Evidence Under
The ankle monitor evidence is arguably not even other crimes subject to
b. Federal Rule of Evidence 403
Even if evidence is admissible under
Here, the balance tips in favor of admission. The probative value of the ankle monitor evidence is significant: It places Fletcher at the scene of the robbery, helps identify him as one of the assailants on the CCTV footage, and explains to the jury how police found the defendants so quickly. To be sure, “the probative worth of any particular bit of evidence is obviously affected by the scarcity or abundance of other evidence on the same point.” Henderson v. Geo. Wash. Univ., 449 F.3d 127, 137 (D.C. Cir. 2006) (quoting Old Chief v. United States, 519 U.S. 172, 185 (1997)) (cleaned up). And here, CCTV footage depicts individuals the Government alleges to be Defendants with their faces and clothing visible. But although the footage may show someone who looks like Fletcher, the GPS data places Fletcher specifically—because of the tracking device attached to his person—at the scene of the robbery at the time it occurred.
The risk of unfair prejudice is, by contrast, not as significant. To start, Fletcher is charged with being a felon in possession of a firearm and ammunition in violation of
This risk, moreover, can be minimized by appropriate safeguards. See United States v. Han, 962 F.3d 568, 573 (D.C. Cir. 2020) (appropriate safeguards to minimize the danger of unfair prejudice include a limit on what details the Government can elicit and a precautionary limiting instruction). First, beyond establishing the fact that Fletcher was on an ankle monitor in connection with his supervision, the court will not permit the Government to present information about why that was so. The Government cannot, for example, elicit testimony that Fletcher was placed on a monitor by his CSO because of Fletcher’s noncompliance with his conditions of supervision. See United States v. Straker, 800 F.3d 570, 591 (D.C. Cir. 2015) (upholding admission of other crimes evidence where the district court “prevented the government from soliciting testimony about particularly prejudicial details”). Second, the court will warn the Government to keep the amount of time it spends questioning witnesses about the ankle monitor evidence to a minimum. Finally, the court is willing to instruct the jury regarding how it can and cannot use the ankle monitor evidence. The court will entertain any proposed limiting instruction at the Pretrial Conference and will also consider any other defense request to sanitize the presentation of this evidence.
VII. MOTIONS TO SEVER
Even so, under
Here, the preference for a joint trial is “especially strong” because White, Fletcher, and Bynum are charged with the same offenses and the Government will use “much the same evidence” and testimony to convict them, including the same CCTV footage and the testimony of the same officers who found Defendants together in the Ford Fusion hours after the robbery. Wilson, 605 F.3d at 1016 (quoting Ford, 870 F.2d at 731). And because Defendants’ attempts to articulate prejudice are unavailing, they have not overcome this strong preference in favor of a joint trial.
Each Defendant expresses concern that his codefendants will try to pin the blame on him and will therefore act as a “second prosecutor.” Specifically, Fletcher fears that Bynum “will attempt to portray [Fletcher] as the primary actor in this incident.” Fletcher’s Mot. at 4. Bynum suspects his codefendants “may argue” that Bynum’s alleged conduct in shooting at the intersection caused White to shoot Miller. Bynum’s Mot. at 3. And White believes both
But on this record, such “plain and simple blame-shifting” does not support a severance to avoid mutually antagonistic arguments. United States v. Rivera, 6 F.3d 431, 438 (7th Cir. 1993); see also United States v. Fields, 763 F.3d 443, 457 (6th Cir. 2014) (“The mere fact that each defendant ‘points the finger’ at his co-defendant is insufficient” to require severance.). To start, the Supreme Court has made clear that “mutually antagonistic defenses are not prejudicial per se.” Zafiro, 506 U.S. at 538. To the contrary, severance is appropriate “only if there is a serious risk” to a defendant’s specific trial right or “a serious risk that” joint trial would “prevent the jury from making a reliable judgment about guilt or innocence.” Id. at 539 (emphasis added). And simple blame-shifting neither compromises a specific trial right nor “necessarily prevent[s] a jury from making a reliable judgment.” Rivera, 6 F.3d at 438; see also United States v. Weckham, 982 F.3d 1167, 1173 (8th Cir. 2020) (“Co-defendants do not suffer prejudice simply becаuse one co-defendant’s defense directly inculpates another[.]”).
As the D.C. Circuit has explained, the concern about mutually antagonistic arguments is that “the jury will unjustifiably infer that this conflict alone demonstrates that both defendants are guilty or, alternatively, that the jury will decide that at least one of the defendants is guilty regardless of whether the government has met its burden of proof.” United States v. Gilliam, 167 F.3d 628, 635 (D.C. Cir. 1999) (emphasis added); see also Weckham, 982 F.3d at 1173 (“Antagonistic defenses require severance only when there is a danger that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.” (emphasis in original)); Fields, 763 F.3d at 457 (To prevail on a mutually antagonistic defenses claim, Defendants must “show that an antagonistic defense would present a conflict so prejudicial that
Next, Bynum contends that severance is warranted because there is more evidence against his codefendants than there is agаinst him. Bynum’s Mot. at 3. But “absent a dramatic disparity of evidence, any joinder is best dealt with by instructions to the jury to give individual consideration to each defendant”—instructions which this court intends to give and expects the parties to be prepared to discuss at the Pretrial Conference. See Moore, 651 F.3d at 95 (emphasis in original). And here, any disparity in evidence is not dramatic at all. Although it is true that only White allegedly shot Miller, that is largely irrelevant to whether Bynum participated in the armed robbery and is therefore liable for Miller’s death under a felony murder theory. Finally, although Bynum was not wearing a GPS monitor like Fletcher, Bynum’s alleged participation was nevertheless captured on CCTV footage, and he was found in the Ford Fusion alongside his
VIII. CONCLUSION
In sum, the court will DENY Defendants’ motions to suppress, to suppress, and to sever. The court will GRANT the Government’s motion to introduce 404(b) evidence, except evidence that police stopped the gray Ford Fusion and observed Fletcher exit the driver’s seat of the vehicle in May 2021. A separate Order will follow this Opinion.
Date: April 27, 2026
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge